CH/4014/2007

DECISION OF THE SOCIAL SECURITY COMMISSIONER

1.	This is an appeal by the claimant against the decision of the Harrow Appeal Tribunal given following a hearing on 3rd July 2007.  By its decision the tribunal dismissed the claimant’s appeal against the decision of the local authority made on 17th January 2007 that the claimant was living at her house together with a partner.  Having made that decision, the local authority suspended the claimant’s claims for housing benefit and council tax benefit on the ground that it did not know whether the claimant had any continuing entitlement to such benefits.

2.	For the reasons set out below, I have concluded that as a matter of law the local authority was not entitled to make a finding on the question whether the claimant was or was not living with a partner.  The tribunal took a different view and therefore its decision was erroneous in point of law and must be set aside.  There was, however, ample material on the basis of which the local authority could properly have decided that it did not know whether the claimant had any continuing entitlement to benefit and nothing in my decision affects the validity of that part of the local authority’s decision of 17th January 2007.  The issue of the claimant’s entitlement, on the basis of the material before me, remains to be resolved.

3.	As the case depends on a point of law, it is not necessary for me to set out the facts in any detail.  In summary, they are as follows.

4.	The claimant has been in receipt of council tax benefit since 1st April 1993 and in receipt of housing benefit since at least 4th December 1995 and has at all material times lived in her present house.  Until 10th February 1994 she declared in relation to her claims that she was living with her partner, the father of a child born on 21st February 1990.  For convenience, I shall refer to him as “the partner”, but in using that expression I do not intend to convey any judgment as to whether he continued to be the claimant’s partner from and after 30th April 1994.  From that date the claimant has been in receipt of income support as a lone parent and her claims to housing benefit and council tax benefit have been dealt with on the footing that she was entitled to such income support.

5.	The claimant has had three further children by the partner, born on 31st January 1996, 8th June 1998 and 25th April 2001.  She and the partner both say that the relationship between them broke down at a rather vague date but, as I understand it, before the birth of the second child.  Since then the partner has paid the claimant a regular sum of money and has kept in touch to maintain contact with the children, but the claimant and the partner have not lived together.  The partner appears to have had no regular other address; he says he spent time with his parents, his grandmother, his brother and, more recently, a new partner (who, however, claims to be entitled to a single person discount for council tax purposes).  The claimant also gives a variety of addresses for him.

6.	It is accepted that numerous personal documents, such as bank statements, employment information, contact numbers for the children’s school, G.P. records and his driving licence give the claimant’s house as the partner’s address.  The house is held under a joint tenancy in both names.  Essentially, however, it is said that it was purely a convenient postal address.  On any view the partner visits frequently and appears in recent years to have been staying overnight twice a week and babysitting on other occasions, so he would have had access to his post.  It is said that when he stays overnight the claimant is spending the night with her new partner.

7.	This gives the flavour of the factual background.  After the local authority’s investigations had produced a substantial part of this information, the claimant was interviewed under caution and the partner was interviewed twice under caution.  The transcripts of the lengthy interviews were before the tribunal.  It is to be noted that the claimant attributes the original breakdown of their relationship to domestic violence on the part of the partner, which she says continued after he had left her house and as a result of which she says she was scared of him.  All of these interviews were conducted not only in the presence of an investigative officer from the local authority but also in the presence of a representative from the Department of Work and Pensions.

8.	At the heart of the present case is the question whether the local authority could proceed to make its own decision on whether or not the claimant and the partner were living together or whether the local authority was effectively bound by the decision of the Department of Work and Pensions on the issue, made for the purposes of deciding entitlement to income support.  At the date of the local authority’s decision and, as far as the papers before me show, at the date of the tribunal’s decision, the Department of Work and Pensions had not reached a conclusion on whether the claimant’s entitlement to income support should be reconsidered, although the investigation file had recently been passed to the Department (p.1f).

9.	In the subsequent paragraphs of this decision I shall follow the course adopted by the local authority and refer primarily to the housing benefit legislation.  As he pointed out to the tribunal, there is materially equivalent council tax legislation.

10.	Entitlement to housing benefit arises under section 130(1) of the Social Security Contributions and Benefits Act 1992, which reads as follows:

“A person is entitled to housing benefit if – 

(a)	he is liable to make payments in respect of a dwelling in Great Britain which he occupies as his home;

(b)	there is an appropriate maximum housing benefit in his case; and

(c)	either – 

(i)	he has no income or his income does not exceed the applicable amount; or

(ii)	his income exceeds that amount, but only by so much that there is an amount remaining if the deduction for which subsection (3) provides is made.”  	

11.	As a joint tenant of her house, the claimant is clearly liable to make payments in respect of a dwelling which she occupies as her home and as far as I am aware it is not suggested that there is not an appropriate maximum housing benefit in this case.  (Alternatively, this aspect has not been addressed for other reasons.)  The crucial point is that if the claimant is receiving income support, it necessarily follows that she satisfies section 130(1)(c)(i).  Under what are now Schedule 4, paragraph 12, Schedule 5, paragraph 4, and Schedule 6, paragraph 5, of the Housing Benefit Regulations 2006, S.I. 2006 No. 213, the whole income and capital of a person on (i.e., receiving) income support is to be disregarded.  Those provisions replace provisions formerly found in the Housing Benefit Regulations 1987, S.I. 1987 No. 1971.  The rationale is that a claimant on income support has already had his or her income and capital assessed for social security purposes to establish entitlement to that benefit.

12.	The claimant’s entitlement to income support is liable to be affected by whether or not she and the partner are living together as husband and wife.  Under section 136(1) of the 1992 Act, where a person claiming an income-related benefit (which by section 123 means income support, housing benefit and council tax benefit) is a member of a family, the income and capital of any member of the family is to be treated as the income and capital of the claimant except in prescribed circumstances.  Under section 137, “family” means, among other things, a couple and “couple” includes a man and woman who are not married to each other but are living together as husband and wife otherwise than in prescribed circumstances.  There is no suggestion that there are any relevant prescribed circumstances in the present case.  It follows that if the claimant and the partner are living together as husband and wife, his income and capital will be treated as her income and capital, no doubt with a very significant effect on her entitlement to income support.

13.	It also follows that the question whether the claimant and the partner are living together as husband and wife is directly relevant to income support because it affects the claimant’s entitlement.  It is not directly relevant to housing benefit in the same way, because (subject to the case considered in paragraph 19 et seq. below) if the claimant is receiving income support she is automatically entitled to housing benefit and the local authority is not concerned to decide whether or not the claimant and the partner are living together as husband and wife.  The local authority only needs to consider that question in relation to a claimant who is not receiving income support.

14.	The implications of this statutory structure were considered by Kennedy J. in R. v. The Housing Benefits Review Board of Penwith District Council, ex parte Menear (1992) 24 H.L.R. 115.  The case concerned an elderly lady whose elderly neighbour sold his house and moved in to live with her.  The Department of Social Security accepted that they were not living together as husband and wife and she was awarded income support.  The local authority, however, rejected her claim for a rates rebate on the ground that they were living together.  In front of the judge, the claimant put her claim as follows:

(1)	when she applied for housing benefit she was already on income support;

(2)	her capital had therefore to be disregarded;

(3)	even if her neighbour was to be regarded as a member of her family, his income and capital was to be treated as hers and so was also to be disregarded;

(4)	the claimant therefore satisfied all the relevant statutory provisions (which so far as material were the same as those now in section 130(1));

(5)	therefore the claimant was entitled to housing benefit.

The judge accepted that approach and found that the Housing Benefit Review Board had concerned itself with a question which in the particular circumstances it was unnecessary to consider.

15.	The present case is fairly and squarely within that authority as matters stood at the time of the local authority’s decision.  The claimant was receiving income support.  It followed that even if she and the partner were living together as husband and wife the income and capital of them both were to be disregarded, so it would make no difference to her entitlement to housing benefit whether or not they were doing so.

16.	The local authority is clearly aware of the decision in ex parte Menear and, as I understand the position, sought to avoid its consequences by reliance on the subsequent decision of Mr. Deputy Commissioner Paines Q.C. in R(H) 9/04.  That case was in a sense the converse of Menear.  A wife had made a claim to jobseeker’s allowance on the basis that her husband was living in the same house.  They had in fact separated and were living in separate households but in the same property, and the wife’s evidence was that she could not see how else to fill in the form.  The house in question had been acquired by the wife after the separation and was not the matrimonial home.  The husband left for a time but came back to the wife’s house with her agreement on the condition that he paid rent.  He then claimed housing benefit.  The claim failed on the basis of what was then regulation 7(1)(c) of the Housing Benefit Regulations 1987, now regulation 9(1)(c)(i) of the 2006 Regulations, which provides that a person is treated as not liable to make payments in respect of a dwelling if the liability is to a former partner and is in respect of a dwelling which he and his former partner occupied before they ceased to be partners.  The local authority contended that since the wife had been awarded jobseeker’s allowance on the basis they were living together, Menear applied to govern the question whether the claimant and his former wife had occupied the house before they ceased to be partners and to determine it against him.

17.	It will be appreciated that the point at issue was whether or not the claimant satisfied the requirements of section 130(1)(a), not section 130(1)(c)(i).  The Deputy Commissioner decided that Menear did not cover the situation.  Its effect was to require a housing benefit officer to determine that a claimant on income support had no income or capital and not to reach a particular decision on what he called a “relationship” question, even if the decision on the relationship question had been an essential part of the decision on whether or not the claimant was entitled to income support.

18.	Nothing in this decision is intended to cast doubt on the decision in R(H) 9/04.  It in turn, however, does not cover the present case, which, as I have said, is fairly and squarely within Menear.  It envisages that there may be inconsistent determinations where both deciding bodies have to make a determination on the issue.  The reasoning in Menear is that in such a case the local authority does not have to make such a determination in order to decide the claimant’s entitlement because it would make no difference.  Even if the determination was correct, the claimant would not lose entitlement to income support with its statutory consequences unless the Department of Work and Pensions changed its decision.

19.	The local authority, however, had a further string to its bow.  The decision letter of 17th January 2007 said that the local authority had concluded that the claimant had not “lawfully” been entitled to income support.  That phraseology brings into play the decision of the Court of Appeal in R. v. South Ribble Borough Council Housing Benefit Review Board, ex parte Hamilton (2000) 33 H.L.R. 104.  The claimant initially claimed housing benefit saying that his claim for income support was being considered.  The housing benefit claim was refused on the ground that the claimant had made false representations.  It later emerged that the claimant had in fact been on income support at some relevant time.  The housing benefit claim was reconsidered but again refused.  Not surprisingly, the claimant sought judicial review, relying on Menear.

20.	The evidence of fraud in Hamilton was strong and the Court of Appeal was plainly reluctant to allow the claimant to benefit from the fact that, to date, apparently no attempt had been made to change the income support decision.  The Court of Appeal therefore in effect added a condition that the income support must have been obtained lawfully:  that is, not by fraud or dishonesty.  In relation to Menear they said:

“… there is no doubting the correctness of the decision.  There was no fraud in that case.  The entitlement to income support was unimpeachable.  That case is no authority for the proposition that a fraudulently obtained entitlement to income support carries with it an entitlement to housing benefit.”  (para. 17)

21.	In the present case the tribunal referred to there being an allegation of fraud as well as to the decision in R(H) 9/04.  In the claimant’s grounds of appeal it is asserted that Hamilton requires that to depart from the income support decision the local authority must prove fraud by the claimant.  The local authority itself in its submissions on the appeal places reliance on R(H) 9/04 rather than Hamilton.

22.	In those circumstances, I find assistance in the helpful note at page 281 of the Child Poverty Action Group’s commentary on Housing Benefit and Council Tax Benefit Legislation.  In connection with Hamilton it is said:

“On its facts, the decision is justifiable as a matter of public policy.  However, caution will be required in its application.  In Hamilton there was apparently no evidence that the DWP had ever considered whether it shared the local authority’s view that the claimant was acting fraudulently.  However, there may be cases where the DWP has examined a claim and has concluded that there is no basis for taking away the claimant’s IS or JSA, or where a decision by a decision maker that a claimant has been acting fraudulently is reversed on appeal to an appeal tribunal.  In that event, Hamilton should not be read as giving the local authority an entitlement to take a different view.”

23.	As I said in paragraphs 7 and 8 above, in the present case the Department of Work and Pensions was involved in the relevant interviews and at the time of the hearing before the tribunal was apparently considering what view it would take.  In those circumstances, it seems to me that the question whether income support was obtained by the claimant fraudulently or dishonestly is clearly one for the Department, which is actively looking at the point.  It is not for the local authority to reach a decision on whether or not the decision makers in the Department have reached or do reach the correct conclusion.  I do not seek to define the precise boundaries of the circumstances in which Hamilton can be relied on, but I take the view that the present case is clearly not within those boundaries.

24.	It follows that I conclude that the tribunal was mistaken in law in taking the view that the local authority was entitled to depart from the Department’s decision, then still effective, that the claimant was entitled to income support.  I allow the appeal and set aside the decision.

25.	Under regulation 11 of the Housing Benefit and Council Tax Benefit (Decisions and Appeals) Regulations 2001, S.I. 2001 No. 1002, a local authority has power to suspend a payment of housing benefit or council tax benefit if it appears to the local authority that an issue arises whether the conditions for entitlement to the benefit are fulfilled.  As I said at the beginning of this decision, the local authority has suspended payment of the claimant’s benefits, presumably under this provision.  Also as I said, in my view there was ample material on the basis of which the local authority could properly conclude that it did so appear to the authority.  That uncertainty could be expected to be resolved by a determination by the Department of Work and Pensions of whether or not the claimant and the partner were indeed living together as husband and wife and if so, what the effect on the claimant’s income support entitlement was.  The local authority’s exercise of the power of suspension is not affected by my decision.

26.	Given the nature of my decision, it would not be appropriate for me to comment in any other way on the merits or otherwise of the remaining grounds of appeal or of the claimant’s case generally.

27.	The ultimate outcome is therefore that the claimant’s position has been improved in theory by the setting aside of a decision on a point that was not within the ambit of the local authority’s power to decide in the circumstances of this case.  In practice, however, it does not improve her position unless the local authority decides to lift the suspension or the Department of Work and Pensions has now decided the issue of her entitlement to income support in her favour.  There is nothing for me to remit to a new tribunal, since on the view I have taken the crucial point does not fall to be decided by the local authority.

	(signed on the original)	E. Ovey
		Deputy Commissioner
							           23rd May 2008